I THINK THAT SOUNDS FAMILIAR??? Sampling Music 101
Have you ever been riding in your car and a new song comes on the radio and you think to yourself, “Where have I heard this before?” Even when you just can’t put your finger on it, there’s something about that song that’s clearly familiar. It may not be the lyrics, or even the vocal performer, but the background melody and beat rings a bell. Today’s new music is filled with old music and the resulting product is usually a great combination. That familiar beat or melody can promote the success of that new song: which in layman’s terms means more royalties for the artist, producer, record labels and writers. Hopefully, that new artist’s team, who was responsible for the new song has obtained the necessary PERMISSION to use that sample of the old song.
In music, sampling is the act of taking a portion, or sample, of one sound recording and reusing it in a different sound recording of a song. In every genre of music you have artist sampling from other songs, but it is most popular in rap music and in the introductions of songs. Sampling without the PROPER PERMISSION is clearly illegal, so getting PERMISSION is key! In my experience, I have noticed that some independent artist like to take shortcuts, due to costs, and don’t adequately protect themselves from copyright infringement. Don’t you be that artist! When someone registers their work with the United States Copyright Office, they will receive the benefit of the Copyright Law. The copyright holder is entitled to the following exclusive rights: to reproduce, to prepare derivative works, to distribute copies, to perform, and to display the copyrighted work. You never want to be the copyright infringer. Copyright infringers suffer money lost with expensive lawsuits and subject themselves to severe penalties: including injunctions (which require you to stop using the sampled work), disposing and impounding of the copied material (trashing products that include the sample), and/or in most cases, judges will hit you with huge fines for damages and profits received! There have been some copyright infringement cases that involved well-known artists such as 2 Live Crew, Vanilla Ice, Dr. Dre, and Sean Combs.
So, how do you avoid copyright infringement? Get the proper PERMISSION to use that sample. First, you need to contact ALL the copyright holders of the music that you would like to sample. Often times this will be the publishing company (for a Mechanical License) or record company (for the Masters Use License). Next, you will need to negotiate a fee and this can vary depending on the length of the sample and whether the sample is from a popular artist/group’s song or an unknown artist or group. Then, you have to figure out how you are going to pay for this sample: (1) a buyout or a flat fee that paid upfront to use the sample or (2) give a portion of the royalties from the song to the copyright holders through a mechanical license. In some instances popular artists may want to use an unknown artist/group’s music, the unknown artist may give the known artist/group permission for FREE, so that they can get exposure (clearly that’s totally up to the copyright holder, but make sure that agreement is in writing). It doesn’t matter which way you choose as long as you get PERMISSION. Sidenote: When the music is in the public domain, you don’t need permission. But the chances of the hip hop and R&B music that you are sampling, being in the public domain, is probably slim to none. Visit www.pdinfo.com for more information on music in the public domain. Some artists depend upon the “Fair Use doctrine” that in some instances allows the consumer to use copyrighted material without permission or even when the copyright holder objects to its use. U.S. courts have recognized the fair use of copyrighted material when it is for the following : criticism, comment, news reporting, teaching, scholarship, research and parodies. Just be aware, because the day you end up in court, your judge may not find that your sample falls in any of these categories. And contrary to popular belief there is no fixed amount of time that allows you to use copyrighted material without permission. SO, it doesn’t matter if it is 2 notes or 4 notes, sampling is sampling, no matter how much or how little.
SO, do MIXTAPES need clearing licenses to use that copyrighted material??? Law says yes! There are DJs and artists being sued for that very reason! But we will address that issue in a later article. It’s not as hard as it seems and there are agencies and firms out there that will help you obtain those licenses you need. There is nothing wrong with reinventing something, as long as the proper credit is given where it is due. In this business it is always easier and cheaper to do things right the first time around.
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Written by: LaQuita R. Stokes, Attorney at Law of CORBIN JOHNSON, PLLC
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